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2004 DIGILAW 49 (JHR)

Bipat Mandal v. State Of Bihar

2004-01-12

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the appellant has been directed against the impugned judgment and order dated 16.4.1998 passed in Session Trial No. 22 of 1997/9 of 1997 by Sri Amod Prasad Ram, 1st Additional Sessions Judge, Dumka, Santhal Pargana whereby and whereunder the appellant was found guilty for the offence punishable under Section 376 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 200/- and in default thereof to undergo further R.I. for two months. 2. The prosecution case has arisen on the basis of the written report of PW 10 Purnima Mandal, the informant and the alleged victim of ravishment in this case lodged before the Kundahit PS on 4.6.1996 at 11.30 hours regarding the occurrence which is said to have taken place on 3.6.1996 at 20.00 hours in the bush behind the house of PW 11 Mamta Rani Mandal, wife of Manik Chandra Chatterjee in village Kamlia P.S. Kundahit District Dumka now Jamtara and a case against the appellant was instituted by drawing of a formal FIR (Ext. 3) on that very day at 11.30 hours which was received on 5.6.1996 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that PW 10 Purnima Mandal, the informant is an orphan girl and none to look after her and she is working as a maid servant for her livelihood in the house of Manik Chandra Chatterjee, the husband of PW 11 Mamta Rani Mandal and on the last Saturday he along with his family had gone to attend a marriage asking her to look after his house in his absence. It is alleged that at about 20.00 hours on 3.6.1996 she had sat for natures call in the bush backside of the said house and in the meantime, the appellant came from behind and stuffed her mouth by clothes and has ravished her and in course of ravishment she anyhow managed to remove the clothes and raised alarms and PW 1 Bhagwati Mandal, the wife of Nimai Mandal who was sleeping in the courtyard of the said house came there and she rescued her and thereafter she and said Bhagwati Mandal narrated the incident to the villagers and on their advice she was coming to the police station to lodge the case in the company of said Bhagwati Mandal. It is also alleged that when she was coming to the police station Srinath Mandal, Lakhan Mandal, Smt. Biniti Mandal and Kumari Shanti Mandal prevented her and they also assaulted her when she was weeping and they brought her to the house of Manik Chandra Chatterjee and finding an opportunity in their absence, she managed to come to the police station through jungle and verbally narrated regarding the incident to the police officials at the police station and thereafter she has lodged her written report in respect thereof. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this got up case as he has refused to marry the informant under the pressure of PW 1 Bhagwati Mandal, PW 11 Mamta Rani Mandal and her husband Manik Chandra Chatterjee as the said Manik Chandra Chatterjee has illicit relationship with the informant. 5. The prosecution has in all examined 13 witnesses to substantiate its case. PW 10, Purnima Mandal is the informant and the victim of alleged ravishment in this case. PW 1 Bhagwati Mandal is alleged to be solitary eyewitness of the occurrence. PW 3 Manik Mandal and PW 6 Sudhir Bawri have turned hostile and they do not support the prosecution case. PW 7 Roopali Mandal, PW 8 Naunidhar Mandal and PW 9 Munilal Mandal have been tendered. PW 2 Vinay Mandal, PW 4 Anil Kumar Mandal, PW 5 Montu Mandal and PW 11 Mamta Rani Mandal are hearsay witnesses of the alleged occurrence. PW 12 Dr. PW 7 Roopali Mandal, PW 8 Naunidhar Mandal and PW 9 Munilal Mandal have been tendered. PW 2 Vinay Mandal, PW 4 Anil Kumar Mandal, PW 5 Montu Mandal and PW 11 Mamta Rani Mandal are hearsay witnesses of the alleged occurrence. PW 12 Dr. Radha Gupta has examined PW 10, the informant on 4.6.1996 at 7.30 PM and the report per her pen in respect thereof is Ext. 2 in this case. PW 13 Raj Narayan Prasad is the IO of this case who has proved the formal FIR (Ext. 3) and signature of PW 10, the informant on the written report (Ext. 1). No oral evidence has been brought on the record on behalf of the appellant but the certified copy of deposition of PW 11 Mamta Rani Mandal in GR Case No. 10 of 1981 has been brought on the record which is Ext. A in this case. 6. Relying upon the testimony of P.W. 10, the informant read with the evidence of PW 1, learned Court below came to the finding of the guilt of the appellant and convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the prosecution case is totally false and got up on and the learned Court below did not properly scan and scrutinize the evidence on the record as well as the defence version for the false implication of the appellant in the said case and has accordingly come to the finding of the guilt of the appellant. It has been submitted that PW 10, the informant was living in the house of Manik Chandra Chatterjee, the husband of PW 11 Mamta Rani Mandal and said Manik Chandra Chatterjee had developed illicit relationship with the informant which did cause differences and quarrels between Manik Chandra Chatterjee and his wife PW 11 Mamta Rani Mandal and Manik Chandra Chatterjee has a desire to solemnize his marriage with informant Purnima Mandal and with a view to get rid of the informant, the appellant was pressurized by them to solemnize his marriage with the informant and when he did not yield to the said pressure he has been falsely roped in this case. In support of his contention a reference has been made to the evidence appearing in the testimony of PW 2 in Paragraph 4, PW 3 in Paragraph 5, PW 7 in Paragraph 2, PW 8 in Paragraph 2 and PW 9 in Paragraph 2. It has also been contended that the IO in his objective finding does not corroborate the alleged ravishment of PW 10 in the bush behind the house of PW 11 and the medical witness has specifically deposed that no definite opinion can be given whether PW 10 has been ravished or not in view of the absence of any external injury on her person or any internal injury on her private part coupled with the absence of spermatozoa in her introitus swab and the medical evidence is not at all in conformity with the prosecution case regarding the ravishment of the informant as alleged. Lastly it has been con- tended that the testimony of PW 1 Bhagwati Mandal is replete with inherent improba-bilities and material contradictions regarding the manner of occurrence and she has animus to depose falsely against the appellant for the reasons as stated above and in view of the submissions aforesaid the impugned judgment is unsustainable. 8. Refuting, the contention aforesaid it has been submitted by learned APP that PW 10, the informant in her evidence on oath has materially substantiated the prosecution case regarding her ravishment by the appellant and her testimony is also corroborated by the solitary ocular witness. PW 1 Bhagwati Mandal and the learned Court below has rightly relied upon their testimony in coming to the finding of the guilt of the appellant. It has further been submitted that the medical evidence though not in conformity with the prosecution case regarding the ravishment of the informant does not contradict the prosecution case as well as the testimony of the informant and in support of his contention a reference has been made of the ratio of the case of Sitaram Choudhary v. State of Jharkhand, 2003 (4) JCR 487 (Jhr), and viewed thus there is no illegality in the impugned judgment. 9. It is pertinent to mention here at the very outset that PW 10 Purnima Mandal, the informant claims herself as aged about 16-1/2 years on the day she has taken oath on 3.12.1997 and the Trial Court regarding her evidence has assessed her age to be 18 years. 9. It is pertinent to mention here at the very outset that PW 10 Purnima Mandal, the informant claims herself as aged about 16-1/2 years on the day she has taken oath on 3.12.1997 and the Trial Court regarding her evidence has assessed her age to be 18 years. PW 12 the medical witness has opined that the age of the informant is between 15 and 17 years on the day of the occurrence. The informant is an orphan girl working as a maid servant in the house of PW 11 Mamta Rani Mandal, the wife of Manik Chandra Chatterjee, resident of the same village. The marriage of PW 11 with Manik Chandra Chatterjee is a love marriage. There is evidence on the record that there were always quarrel between PW 11 Mamda Rani Mandal and her husband Manik Chandra Chatterjee on the issue of the informant working in her house as there were illicit relationship between Manik Chandra Chatterjee and the said informant and Manik Chandra Chatterjee used to tell in the village that he will get the marriage of the informant performed with any boy of village Kamlia. it is equally relevant to mention here that the evidence of the medical witness shows that the hymen of the informant reveals old rupture admitting two fingers easily. There is also evidence on the record to show that PW 11 Mamta Rani Mandal has earlier instituted a case of rape against Dinbandhu and thereafter she has also instituted a case against Munilal, the uncle of Dinbandhu aforesaid for ravishing her and the evidence of PWs 9 and 2 is referred to in his regard. PW 9 has also deposed that PW 1 has also instituted a case of rape against Ajit, PW 2 has deposed that PW 11 has also filed a case against Dinbandhu claiming herself to his lawfully wedded wife and thereafter she has solemnized her Court marriage with Manik Chandra Chatterjee. PW 1, the sister of PW 11 has, however, evaded in respect thereof in her evidence on oath showing her ignorance and PW 11 in her evidence has disowned the aforesaid facts. There is also evidence on the record that one Bhuwan had three sons and one daughter namely Radha Mandal, Munilal, Tarapad Mandal and Bijli Mandalian. PW 1, the sister of PW 11 has, however, evaded in respect thereof in her evidence on oath showing her ignorance and PW 11 in her evidence has disowned the aforesaid facts. There is also evidence on the record that one Bhuwan had three sons and one daughter namely Radha Mandal, Munilal, Tarapad Mandal and Bijli Mandalian. Dinbandhu Mandal aforesaid is the son of Radha Nand Mandal Srinath is the son of Bijli Mandalian aforesaid and the appellant is the son of Srinath Mandal aforesaid. PW 4 Anil Kumar Mandal has deposed that his father Gurhi Ram Mandal and one Bhuwan Mandal were full brothers and Savitri is the wife of Bhuwan Mandal aforesaid and Srinath Mandal, the father of the appellant is the son-in-law of Bhuwan Mandal. He has also deposed that his full brother Paresh is on litigating terms with Savitri aforesaid and thereafter PW 4 has animus to support the prosecution case as hearsay witness against the appellant. It is also pertinent to mention here that PW 11 claims herself to be present in village Baruadih in the night of the occurrence and at 4.00 hours on Tuesday, the informant and PW 1 had come to her residence at Baruadih and she has gone to the police station with them and the police has sent the informant with her at 10.00 hours on Tuesday to the hospital. 10. In the background of this case as stated above, let us now advert to the evidence on the record. PW 10 Purnima Mandal, the informant has deposed that at about 8 Oclock in the night of Monday she was sitting for the natures call behind the house of PW 11 and at that time she was wearing only a Gamchha and the appellant came there behind and he tied her mouth with the said Gamcha and thereafter he caught her both hands and felled her on the ground and forcibly ravished her. She has further deposed that she managed to remove the said Gamchha from her mouth and raised alarms and PW 1 Bhagwati Mandal came there and the appellant fled away from there. She has further deposed that she managed to remove the said Gamchha from her mouth and raised alarms and PW 1 Bhagwati Mandal came there and the appellant fled away from there. She has further deposed that she narrated the incident to the villagers except the village Chaukidar who were present in his house and thereafter she proceeded to the police station and she was prevented by Srinath Mandal, Lakhan Mandal, Vinod Mandal and Shanti Mandal and she was intimated to be assaulted and she along with PW 1 returned to the house and thereafter she came to the police station through jungle and as directed by the husband of PW 11 wrote the written report which she has lodged with the police and thereafter she was sent for medical test. In paragraph 5 of his cross examination she has deposed that she was wearing only a Gamchha at the time of the occurrence and she had kept her other clothes nearby. She has also deposed that when she was felled on the ground she has sustained injury on her knee and scratch was caused which had bled. She has further deposed that prior to that she had no cohabitation with any person and in the course of occurrence also there was no bleeding from her introitus. She also deposed in Paragraph 12 of her evidence that after the occurrence she put on her clothes and came back to the house but in the next breath she has said that she had covered herself by a "nighty" and she came to her house. PW 1 has deposed that at the time of occurrence she was inside her house sitting on a cot and on alarms she went to the place of occurrence and saw the appellant on the chest of the informant ravishing her. She has further deposed that she has separated them from each other and the appellant twisted her hand and fled away. Her evidence is further to the effect that she brought the informant to her house and narrated the incident to the villagers including Choukidar and proceeded to the police station but Shivnath Mandal, Lakhan Mandal and Vinod Mandal did not allow her to proceed to the police station and thereafter she along with the informant went to the police station through jungle concealing themselves. In paragraph 10 of her cross-examination she has deposed that the informant narrated the incident to the police officer present there who wrote the written report and thereafter in the said night she handed over the informant to Manik Chandra Chatterjee at village Baruadih and she returned to her village Kamlia. PW 1 contradicts the testimony of the informant that written report has been scribed by Manik Chandra Chatterjee. Furthermore, PW 10, the informant does not say in her evidence that her fardbeyan was scribed by the police officer at the police station. The informant also does not say in her evidence that she has been at the police station in the night of the occurrence. Her evidence is further to the effect that she along with PW 1 had gone to the house of PW 11 Mamta Rani Mandal in village Baruadih in the night of the occurrence and thereafter she had come to the police station with PW 11 Mamta Rani Mandal. PW 1 is either deliberately suppressing the said fact or lying in respect thereof for the reasons best known to her. PWs 4, 5 and 11 are the hearsay witnesses of the occurrence in question. PW 4 has claimed to have learnt about the occurrence from the informant and PW 5 claims to have learnt about it from PW 9 Munilal Mandal. PW 9 Munilal, who has been tendered, does not say about the alleged incident as well as the fact that he has been informed by PW 5 in respect thereof. PW 10, the informant has not deposed to have informed regarding the said occurrence to PW 4 Anil Kumar Mandal. Therefore, the evidence of PWs 4 and 5 is hearsay evidence regarding the occurrence which lacks credence. PW 1 has deposed that at the time of occurrence her husband Nimai Mandal, her mother Khela Dasi, her sister Gayatri, and her son were present in the said house behind which the occurrence is said to have taken place but none of them is forthcoming to support the occurrence even as hearsay witness. I have already stated above the PW 4 Anil Kumar Mandal is inimical to the appellant. PW 11 Mamta Rani Mandal has deposed to have learnt about the occurrence from the informant and her sister Bhagwati Mandal when they had come to village Baruadih. I have already stated above the PW 4 Anil Kumar Mandal is inimical to the appellant. PW 11 Mamta Rani Mandal has deposed to have learnt about the occurrence from the informant and her sister Bhagwati Mandal when they had come to village Baruadih. Therefore, in this case we have the testimony of PW 10, the informant and PW 1 Bhagwati Mandal in support of the prosecution case. Let us now scan and scrutinize their evidence in the light of the objective findings of the medical witness read with the IO, PW 13 the I.O. has deposed that he has inspected the place of occurrence which is near a Mahua tree and at the place of occurrence he did not find any incriminating evidence regarding the ravishment of the informant taking place there. In Paragraph 7 of his cross- examination he has deposed that he did not find any externally injury on the person of the informant and the informant had also not handed over her clothes to him which she was wearing at the time of the alleged occurrence. PW 13, the IO has specifically deposed in Paragraph 8 of his evidence that he did not find any trampling mark at the place of the alleged occurrence. The I.O. has further deposed that PW 1 has not stated before him that the appellant has twisted her hand and fled away from there and as such the IO, contradicts the testimony of PW 1 in respect thereof. He has further deposited that PW 4 Anil Kumar Mandal has not stated before him that PW 10, the informant has told him about her ravishment, rather he has stated before him that he has heard the rumour regarding the occurrence. The I.O. has further deposed that PW 11 Mamta Rani Mandal has not stated before him that PW 10, the informant and her sister PW 1 Bhagwati Mandal had come with her husband Manik to village Baruadih in the following morning of the occurrence and narrated the incident in respect thereof, rather she has stated before him that on return to village Kamlia she got information regarding the occurrence in question. Therefore, the evidence of PWs 11, 4 and 5 as hearsay witnesses is untrustworthy and no reliance can be placed upon their evidence. Therefore, the evidence of PWs 11, 4 and 5 as hearsay witnesses is untrustworthy and no reliance can be placed upon their evidence. The testimony of the IO further reveals that the case of the prosecution regarding the ravishment of PW 10, the informant at the alleged place of occurrence lacks credence. PW 10, the informant in Paragraph 6 of her evidence has deposed that she was a nubile virgin having no cohabitation prior to the occurrence. She has been examined by the medical witness on 4.6.1996 at 7.30 p.m. the medical witness has deposed that she did not find any external injury on the person of the informant which belies the evidence of the informant that she has sustained scratch on her knee when she was felled on the ground. The medical witness has further deposed that she also did not find any internal injury over the private part. She has also deposed that she also did not find any recent tear in her hymen. She has also deposed that the hymen of the informant reveals old rupture. This equally falsifies the evidence of the informant that she was a nubile virgin on the day of the occurrence. In case of nubile virgin, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. The absence of any internal injury on the private part of the informant negates the case of the prosecution regarding the ravishment of the informant as alleged. The medical witness has further deposed that the hymen of the informant reveals old rupture which admits two fingers easily and she was menstruating at the time of the examination. It, therefore, appears that the informant was accustomed to sexual intercourse much prior to the occurrence and the existence of this fact lends support to the defence version that Manik Chandra Chatterjee, the husband of PW 11 had illicit relationship with the informant and with a view to get rid of her, Manik Chandra Chatterjee used to say to get her marriage solemnized with any boy of the village. The medical witness has further deposed that no spermatozoa in her introitus swab was found on pathological examination and in view of the finding aforesaid, the medical witness came to a finding that no definite opinion can be given whether the victim was ravished or not. Therefore, the medical evidence taken in totality as stated above, is not in conformity at all with the prosecution case of the ravishment of the informant as alleged. The ratio of the case of Sitaram Choudhary (supra) that absence of spermatozoa in the vaginal swab of the informant on examination by the medical witness after 24.00 hours if does not corroborate the evidence of the informant regarding her ravishment, it also does not contradict the prosecutrix, is against the established tenet of medical jurisprudence. The presence of human spermatozoa is a positive sign of rape particularly in the case of children and grown up virgin or unmarried woman; and in case of grown up married woman it shows the factum of recent sexual intercourse. At in the Modis Medical Jurisprudence and Toxicology (2nd Edition) it has been stated that "the presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from thirty minutes to seven teen days, and by Morrison (1972) upto nine days in vagina and twelve days in cervix. However, in the vagina of a dead woman, they persist for a longer period." Have already stated above that the informant was examined by the doctor within 24.00 hours of the alleged occurrence and no spermatozoa dead or alive was found in her introitus swab which totally rules out the possibility of having sexual intercourse with the informant as alleged. Therefore, the medical evidence on the record does not at all corroborate the factum of ravishment of the informant as alleged. And last but not the least PW 10, the informant has deposed that the house of PW 1 is surrounded by house of Radha Mandal, Bonu Mandal, Vipad Mandal and .several other houses and the house of Bonu Mandal is behind the house of PW 11 Mamta Rani Mandal. The place of occurrence of his case is said to be behind the house of PW 11 aforesaid. The place of occurrence of his case is said to be behind the house of PW 11 aforesaid. The occurrence is said to have taken place at 20.00 hours on 3.6.1996 but none of the inmates of the said house is forthcoming even to support the prosecution case regarding the alleged occurrence. Therefore, in the facts and circumstances of this case coupled with the evidence on the record the evidence of PW 10 the informant and PW 1 suffers from basic infirmity and their evidence is untrustworthy and there is no ring of truth therein and the "probability factors" equally render it unworthy of credence and the medical evidence totally demolishes the case of the prosecution regarding the ravishment of the informant as alleged. Therefore, in the facts and circumstances of this case, defence version of the false implication of the appellant at the instance of PW 11 and his sister PW 2 with the deceitful support of Manik Chandra Chatterjee cannot be ruled out in the facts and circumstances of this case and the defence version, therefore, appears to be natural and probable. The learned Court below did not consider the evidence on the record meticulously in proper perspective and has committed manifest error in coming to the finding of the guilt of the appellant and as such the impugned judgment cannot be sustained. 11. There is merit in this appeal and it succeeds. The impugned judgment of the learned Court below is hereby set aside. The appeal is hereby allowed. The appellant is not found guilty and he is, accordingly, acquitted. Let this appellant be set free forth- with, if not wanted in any other case.